The Importance of Anticipatory Bail in 498a Mehnat.IN

Have you ever read in your readings about 498a on internet forums that getting anticipatory bail is like winning half the battle? As a matter of fact it is more like winning the whole battle, as I will explain forthwith. Before explaining, however, it is necessary to remind the reader that every bail order is a final order, and usually the only way to challenge an order granting bail is to apply for cancellation of granted bail.

Anticipatory bail enables an accused in a criminal case to remain free while fighting his case. Bail is usually given in most cases except the ones which are very serious. Even in murder cases bail can be given as can be seen in the Aarushi Talwar murder case. While bail usually comes after the stigma and the trauma of being arrested, anticipatory bail helps the accused person to avoid police custody and jail altogether. Anticipatory bail is fairly common in 498a cases, provided you satisfy certain criteria and can be said to be the norm in these.

The usual additional charges which are pressed by the police in 498a cases are IPC 406, (criminal misappropriation of stridhan or criminal breach of trust), and IPC 34 (common criminal intention). The maximum length of time in jail by which 498a is punishable is 3 years. For IPC 406 also this period is 3 years, and for IPC 34 it is 1 year.

You are one hundred percent guaranteed to get your anticipatory bail deemed as regular bail at the point in the proceedings against you where you get chargesheeted (i.e. it is automatic full bail).

First of all, the chances of conviction in 498a cases are very low as you probably know. This does not mean that you will definitely escape punishment (even if you are actually guilty), but that the statistics are in your favour, and that you can consider yourself at risk of conviction only if your case is very serious. So in all likelihood you will not be convicted by the lowest court.

If the lowest court does not convict you, then the police may decide not to appeal in a higher court. Remember that it is usually the police and the prosecution which decides whether or not to appeal an acquittal in a higher court. The opinion of the complainant matters very little in this decision. Only in high profile cases like the Sajjan Kumar case have the complainants managed to appeal an acquittal without the concurrence of the prosecuting agency, which may be Delhi Police, or CBI, or some state police. The prosecuting agency is deemed to act on behalf of the state, and the state is operatively the offended party in criminal cases.

In case the state decides not to appeal your acquittal, you are a free man, and your anticipatory bail has enabled you to remain free all the while right up till the dismissal of the case against you.

In case the state decides to appeal your acquittal, your bail gets automatically extended by the court of appeal in the first hearing itself, and the whole process starts again. Chances of a higher court overturning a lower court verdict are not too high, and you can be fairly certain of being acquitted again. Also note that you can continue to live life as normal while you are defending yourself in court.

If and when you get acquitted again, the prosecuting agency will not have the will to appeal again. This stage is quite likely the end of your troubles.

In case the lower court convicts you, you will be sentenced to time in prison. Let us assume for the sake of argument that you get the maximum possible sentence under all three sections. This sounds like three plus three plus one which is equal to seven years in prison. But this is not the case. In India prison sentences are almost invariably given as concurrent sentences, which is to say that all the three sentences start simultaneously from your first day in jail. So you will be effectively sentenced to three years in jail in case you get the maximum time.

But hold on, let us not talk about jail yet. You have the right to appeal your conviction in a higher court. In Indian criminal law, anybody who gets sentenced to up to three years in jail is entitled to a continuation of his bail pending the disposal of his appeal. So your bail will get extended again. One possibility is that the prosecution may decide to petition the court for cancellation of your bail in order to force you to live in jail while your appeal is being decided. Courts rarely entertain such petitions by prosecutors in a positive way. The complainant will quite likely lose her morale after the lame victory provided to her by the lower court conviction and will start seeking a compromise. If not at this stage then at the next stage she is likely to give up.

You may think that fast track courts which are being proposed will enable women to prosecute men faster. This is not true. 498a cases are notorious in the judiciary for being composed mostly of false allegations. Everyone from the CAW Cell to the Law ministry to the Chief Justice of India is aware of this problem. So they are unlikely to create fast track courts for these disgruntled wives. This is especially true in the context of the much more serious suffering which is undergone by people who get killed, raped, or maimed during crimes, and they are the ones who will get the first benefit of fast track courts. Also remember that when God takes away with one hand, he gives something with the other. If proceedings are made quicker then the suffering of 498a accused will be shortened, and their chances of coming out of this ordeal will improve considerably.

Remember, in 498a cases there is negotiation and compromise possible at any stage in the proceedings right from the initial CAW Cell stage to the Supreme Court SLP stage. Foolish complainants compromise after wasting a few years. Wise ones compromise immediately, take their money, and run. So your anticipatory bail will ensure that you get to spend zero time in prison or in police custody.

You may also wish to read What Happens After AB?

previous article (about the procedure for anticipatory bail) / हिंदी में (अग्रिम ज़मानत प्रक्रिया के बारे में लेख)।
next article (about the criteria for anticipatory bail in dowry cases) / हिंदी में (दहेज़ मामलों में अग्रिम ज़मानत के मानदंडों के बारे में लेख)।